Minority shareholdings and the Commission’s White Paper on merger reforms

Law & Economics workshop organized by Concurrences in partnership with Cadwalader and Compass Lexecon.

Johannes Luebking (DG COMP)

Dr. Luebking started off the presentations with a short summary of the purpose of the White Paper, intended not only to propose reforms going forward but also as a way to take stock of developments in European merger control since the introduction of the European Merger Regulation (EUMR) ten years ago in 2004. Regarding the main focus of the White Paper, namely the extension of the EUMR to cover problematic minority shareholdings, the EC has faced a two-fold question: Early in the consultation process, the discussion centred around the question of whether there even was a need to control minority shareholdings. In this regards, Dr. Luebking stated that he did believe that “there is a gap”. Currently, the EUMR is limited to instances where a shareholding confers control over the target and the Commission can review minority shareholdings under the EUMR only in the context of later acquisitions of full control. Assessing minority shareholdings under the EU’s main antitrust provision, Article 101 TFEU, would present difficulties in identifying a restrictive agreement and would cover only a limited aspect of the problem. Meanwhile, review of minority shareholdings has been a standard feature of competition regimes both within the EU (where currently three member states take jurisdiction over minority shareholdings) and around the world (for example in the United States or in Japan).

Photos © Emilie Gomez

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